A draft of a confidential mediation document that was leaked to Clearing Up on Nov. 27 shows that the federal government is preparing to invest billions of dollars in tribal energy projects to replace generation from the lower Snake River dams, while also potentially taking control of and restructuring salmon recovery efforts in the Columbia Basin.
The 34-page draft document commits billions of dollars from the federal government—not necessarily from the Bonneville Power Administration—to develop between 1 GW and 3 GW of renewable energy, and creates the "Pacific Northwest Tribal Energy Program." The document says that the U.S. Department of Energy and the U.S. Department of Agriculture will work with the tribes to "develop and deploy clean, renewable, socially-just energy resources" to be planned as "replacement" power for the lower Snake River dams if Congress authorizes the breaching of those dams.
"In coordination with the Six Sovereigns," the document says that the U.S. government and "DOE will develop a means of 'accounting' for the region's development of resources available to serve as 'replacement' energy services for the lower Snake River dams."
The document's unauthorized release came just weeks before Dec. 15—the date when plaintiffs and defendants in the decades-long lawsuit had told a federal judge that they'd either file a multiyear settlement or continue with litigation.
It also came one week after Clearing Up outlined some of the document's contents by talking to multiple sources with knowledge of the potential agreement, but who spoke only on condition of anonymity (Clearing Up No. 2134).
Public-power advocates have long complained that they were being left out of negotiations, and although court mediation negotiations are often confidential, the outcome of this case could be so significant to Northwest ratepayers and others that the talks should be more open, sources said (Clearing Up No. 2131).
On Nov. 21, Reps. Cathy McMorris Rodgers (R-Wash.), Dan Newhouse (R-Wash.), Cliff Bentz (R-Ore.) and Russ Fulcher (R-Idaho) asked the White House Council on Environmental Quality for the "immediate transmittal" of the federal commitments being offered in the potential settlement agreement. A week later, they sent a letter to President Joe Biden highlighting the many uncertainties in the proposed deal and attached the draft confidential settlement, making the document public on Nov. 29.
The document is one of two in a "package of actions and commitments" that CEQ negotiated with plaintiffs, states and tribes. If finalized, it would be a significant step in the case of National Wildlife Federation et al. v. National Marine Fisheries Service et al. [01-640], which has previously led to significant spill and other operational measures at eight federal dams on the lower Snake and Columbia rivers.
In their letter to Biden, federal lawmakers had numerous questions for the administration. They asked for specifics about how the new tribal energy program would impact BPA and the Snake River dams. They asked about the science behind a 2022 NOAA Fisheries report, which called for breaching the four lower Snake River dams as one of a handful of necessary actions in order to rebuild healthy and harvestable stocks of salmon and steelhead. They asked about the mechanisms for incorporating grid reliability, a continuous baseload energy deployment, and whether input from power providers would be sought. And they wondered if new appropriations from Congress would be needed to fulfill the government's commitments, and whether any members of Congress have promised funding.
The draft agreement—which touches on nearly every aspect of salmon recovery in the Columbia Basin—seeks to reform the Northwest Power and Conservation Council Fish and Wildlife Program, which is funded by BPA.
It directs NOAA Fisheries and the U.S. Fish and Wildlife Service to work with the states and tribes to "seek collaboration with the [Council] to consider management reforms" to its mitigation programs.
Many of the commitments involve the Six Sovereigns, which are the states of Oregon and Washington and four Native American tribes—the Confederated Tribes and Bands of the Yakama Nation, the Confederated Tribes of the Umatilla Indian Reservation, the Confederated Tribes of the Warm Springs Reservation of Oregon, and the Nez Perce Tribe.
The tribal energy program "will work in parallel with the regional energy planning process to which DOE will also contribute funding" to "help achieve the energy goals of the Pacific Northwest and facilitate Tribally-owned clean energy resources in the region," according to the document. Development of these projects would be "parallel tracked" in that it would not wait for the regional energy planning process.
DOE would additionally work with the tribes to fully explore legal and regulatory options for speeding interconnection of projects to the transmission grid.
The document says that "nothing in BPA's contract for sales of power shall limit the Administrator's authority to acquire power consistent with the Northwest Power Act," but "when considering resource acquisitions necessary to meet the Administration's obligations, BPA shall consider purchases of power generated by Tribally-owned or -sponsored power resources, as appropriate, consistent with the Tribal Preference Authority, which allows federal agencies to prioritize purchasing Tribally-owned energy."
The confidential document says assistance to support tribally owned clean-energy projects will be through USDA's energy programs, such as the Powering Affordable Clean Energy Program and the Rural Energy for America Program.
DOE will provide $5 million to the Pacific Northwest National Laboratory and potentially other DOE labs to complete the Regional Energy Needs Planning Process, which will "identify the best ways to meet the region's resource adequacy needs and decarbonization goals, and support meeting Washington and Oregon's power sector statutory requirements as well as state and [tribal] energy strategies, while also accounting for any long-term actions necessary to ensure abundant and healthy salmon populations throughout the Basin, including breach of the Lower Snake River dams."
The draft agreement also commits BPA to an estimated $300 million in additional spending on salmon recovery.
The document also calls for creation of the Mid-Columbia Restoration Plan, which will spend $2 billion over 10 years and will be managed by Northwest tribes and the federal government.
The plan will "develop recommended actions to rebuild mid-Columbia stocks as described in the Rebuilding Interior Columbia [Basin] Salmon and Steelhead report, including, but not limited to, appropriately managing predation and protecting and restoring instream flows, water quality, and fish passage and habitat improvements in low- to mid-elevation tributary and mainstem habitat."
NOAA Fisheries will coordinate "with the appropriate USG agencies/departments" and the Six Sovereigns to develop, by June 30, 2024, an agreed-upon 10-year suite of mid-Columbia actions for implementation beginning in fiscal year 2026, understanding that these actions will likely require at least "doubling current levels of mitigation and restoration funding."
In all, the document spells out more than two dozen U.S. government commitments in several categories in an effort to achieve shared objectives from a Columbia Basin Restoration Initiative proposed by leaders of the four tribes earlier this year.
Those categories include lower Snake River restoration, reintroduction of salmon in the upper Columbia River basin, and improvements for salmon in the mid-Columbia River basin, along with commitments to help restore other native fish, improve ecosystem functions, and resolve issues in fish operations at the lower Snake and Columbia river dams.
In the lower Snake River, the parties would also agree to address rail, road and culvert upgrades to improve transportation infrastructure while protecting salmon and steelhead. State and federal agencies would also analyze transportation, recreation and water supply needs in order to replace the dams—if authorized by Congress.
In the upper Columbia River, the U.S. government would commit to ensuring the second phase of salmon reintroduction above Grand Coulee and Chief Joseph dams is fully funded, and to working with others on analyses and plans needed to remove Enloe Dam on the Similkameen River.
The document says the federal government "will identify available funding across agencies and departments, as well as other sources; and consistent with the September 27, 2023 Presidential Memo will evaluate new appropriations needs, and, as appropriate, potential future Congressional legislation necessary for implementation."
"The USG commits to working with the Six Sovereigns on potential changes such as interim project operations, more aggressive advancement of mid-Columbia River habitat restoration, and fish passage," according to the document.
